The news that the Bush administration had abused its dying days in office by rushing through the supporting regulations for UIGEA without further debate has a bright side. According to an article in Politico, there is Clinton-era legalization – the Congressional Review Act of 1996 – that can be used by an incoming administration to reverse "midnight drop" laws rammed through by its predecessors.
At present, the use of the CRA is being contemplated by the incoming Democrats, who will have control of the US presidency, the House and the Senate, in regard to some of the Bush government's environmental moves, but the possibility exists that it could apply to the highly controversial UIGEA regulations rushed through by Treasury last week.
The CRA requires that any regulations finalised within 60 legislative days of Congressional adjournment is considered to have been legally finalised on the 15th legislative day of the new Congress, which then has 60 days to review it and reverse it with a joint resolution that can not be filibustered in the Senate.
In other words, Politico opines, any regulation finalised in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress.
A senior aide on the Senate Environment and Public Works Committee, which is chaired by Democatic Senator Barbara Boxer was familiar with the CRA, and confirmed to Politico that it is an option the committee is considering.
House Global Warming Committee Chairman and Democrat Ed Markey is apparently also looking at it, and opined through a spokesman that the CRA speeds up the process for rescinding bad rules.
Congress last used the CRA in 2001 to overturn a Clinton administration rule that set new requirements for ergonomic work spaces.
The Bush White House was on the defensive on the issue. “We are not rushing regulations through at the last minute. We are simply continuing our responsibility of governing until the end of the president’s term,” said White House spokesman Carlton Carroll. “As for the Congressional Review Act, Congress has tools they can use now to overturn regulations, just as they do at all other times, but that doesn’t discourage us from continuing our responsibility to govern.”
Aides to the Democratic Party's Speaker Nancy Pelosi and fellow Democrat Senate Majority Leader Harry Reid said that a decision has yet to be made regarding the strategy for dealing with Bush administration regulations.
Jerry Brito, a senior research fellow at the Mercatus Center at George Mason University, closely follows midnight drop regulations, and told Politico that the incoming Obama administration should package all of the regulations it wants overturned into one large vehicle to be voted up or down.
“That would solve the collective-action problem, and it solves the pet-project problem. It would sort of limit special pleading,” he said, noting that each new regulation benefits someone specific who will fight hard to keep it. Lumping them together dissipates that energy."
The new US president could still overturn rules through the regulatory process, but those rules would be subject to new investigation and comment periods, which could take years to finish.
If Obama is able to overturn a sizable number of Bush’s midnight drop regulations, he would be the first president in recent memory to succeed at such an effort, Brito said.
Clinton managed to repeal 9 percent of President George H.W. Bush’s regulations and amend 48 percent of them. The rest remained in place.
President Bush managed to repeal only 3 percent of Clinton’s regulations and amend 15 percent, Brito said.
Though the Competitive Enterprise Institute’s Ebell leans more toward President Bush’s more hands-off approach to regulation, he insists that he’s supportive of congressional review – since, under the Constitution, Congress is supposed to be the body that makes the laws.